Since the 1930s, the starting point for analysis under the Double Jeopardy Clause has been Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), which held that the test for surviving double jeopardy challenge where the same act or transaction constitutes a violation of two statutory provisions is whether each provision "requires proof of a different element." Id. at 304. In Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990), the Court expanded double jeopardy protection, holding that a second prosecution is barred if, to establish an essential element of the offense charged, the government would have to prove conduct that constituted an offense for which the defendant had already been prosecuted. This "same conduct" test in Grady, however, was overruled by a majority of Justices in one of several voting alignments in United States v. Dixon, 125 L. Ed. 2d 556, 113 S. Ct. 2849, 2860 (1993). Hence Blockburger remains the foundation of analysis.

Conspiracy to Murder

Count One of the indictment at issue charges that from approximately September 1992 to January 21, 1993, Gallego, his brother, Martinez, and Rosado conspired to murder a postal service employee in the performance of his duties. The indictment alleges, among other overt acts, that Gallego shot and killed Gonzalez.

In evaluating double jeopardy challenges to conspiracy charges, the application of the Blockburger test requires that the Court weigh the so-called Korfant factors to ascertain whether the same conspiracy has been charged twice:

"(1) the criminal offense charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of the operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where the overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies." United States v. Macchia, 35 F.3d 662 (2d Cir. 1994) (citing United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985)).
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The 1993 indictment charged a conspiracy with others known and unknown. The alleged duration was the single day, January 21, 1993. The alleged objects were assault and robbery and, in the course thereof, to endanger the life of a postal employee. The only overt act alleged was Gallego's driving of the postal truck containing Gonzalez's dead body. The present indictment, on the other hand, involves a substantially longer time period, alleges that the conspiracy embraced extensive planning and reconnaissance operations (and the building of a silencer), asserts that the killing of Gonzalez was an object of the conspiracy, and implicates additional alleged co-conspirators. While there are, to be sure, elements common to both the alleged conspiracies -- including some overlap of participants, some overlap of geographic areas relevant to the conspiracies alleged, and some interdependence of the success of the alleged conspiracies -- the Court concludes that the differences outweigh the common elements. Cf. Macchia, 35 F.3d at 669-72.

The felony murder theory in the 1995 indictment presents a different question. In order to convict for felony murder, the government need prove, in addition to any of the crimes to which Gallego pleaded guilty in 1993, only the killing of Gonzalez. Thus, the Blockburger test is not satisfied. Moreover, the Supreme Court has held that felony murder is not a separate and distinct offense from the various elements of the underlying felony or felonies and, in consequence, that a felony murder conviction bars later prosecution for the underlying felony. Harris v. Oklahoma, 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912 (1977) (per curiam). In Dixon, a majority of Justices left this rule intact. 113 S. Ct. at 2857 (Scalia and Kennedy, JJ.) (citing with approval Illinois v. Vitale, 447 U.S. 410 at 410-420, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980) and Harris); id. at 2868-69 (White and Souter, JJ.). See United States v. Henderson, 535 F. Supp. 677 (N.D.N.Y. 1982), rev'd on other grounds, 698 F.2d 589 (2d Cir.), cert. denied, 464 U.S. 835, 78 L. Ed. 2d 118, 104 S. Ct. 120 (1983) (Double Jeopardy Clause barred subsequent prosecution for felony murder after the defendant's conviction of attempted robbery).
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In an effort to avoid this conclusion, the government advances a novel theory. It points out that there was authority when it refrained from prosecuting Gallego for felony murder in 1993 that the applicable statute, 18 U.S.C. § 1111, required proof of malice aforethought, not merely intent to commit the underlying felony.
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The government had no evidence of intent to kill and therefore thought it inappropriate to charge Gallego with felony murder. (Vigeland Aff. P 15, ex. G at 11-16) The Second Circuit, subsequent to Gallego's plea, in United States v. Thomas, 34 F.3d 44 (2d Cir.), cert. denied, 130 L. Ed. 2d 431, 115 S. Ct. 527 (1994), held that the intent required to convict for felony murder is only the intent to commit the underlying felony, not intent to kill. In consequence, the government argues that the Double Jeopardy Clause should not bar the felony murder charge because its decision not to charge that crime in 1993 was reasonable, given the law at the time. The government attempts to support this argument by analogizing from Brown v. Ohio, 432 U.S. 161, 170 n.7, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), which held that there is no double jeopardy bar to a subsequent prosecution based on the discovery by the government, following the initial prosecution, of evidence necessary to sustain the charge which could not have been discovered earlier by due diligence.

The government's argument is unpersuasive. In Brown, the evidence necessary to the charge ultimately leveled simply was not available to the government, through not fault of its own, at the time of the first prosecution. Here, on the other hand, the strictly legal question of the intent required to convict for felony murder was open, at least in this circuit, at the time of the first indictment. While the government's restraint in declining to allege felony murder based on its good faith belief that the law should not support such a charge is the sort of admirable decision one hopes to see from those possessed of the enormous power of the prosecutorial office, the fact remains that a good faith basis existed in 1993 for a felony murder indictment. In view of the government's control over the decision whether to prosecute, it is sensible that the government should bear the risk of finality of a legal determination it makes. Consequently, the Court sees no reason to carve a new exception to the Double Jeopardy Clause.

Conclusion

For the foregoing reasons, the Court grants the defendant's motion to dismiss the felony murder theory in Count 2. The motion is denied in all other respects.

SO ORDERED.

Date: December 11, 1995.

Lewis A. Kaplan

United States District Judge

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